υ. GRAHAM; BELL υ. 1907. Acts Attendance at Withdrawal ss. 7, 74. MARSHALL of the words "day exclusively set apart," I should have had a difficulty about applying "lawful excuse" to the afternoon in Bell's case, because I cannot see any reason why, if the child is well enough and not too tired or anything of that sort, she GRAHAM. should not go to school in the afternoon, having gone to church in the morning. Taking the view I do on the sections of the Act, there is very good reason for thinking that if the parent Education wished to concentrate her attention upon two services she ought not also to go to school; but I do not wish it to be thought that school-Day I should have applied the "lawful excuse" to the afternoon nonfor religious attendance on the part of the girl in Bell's case had I come to a observance different conclusion upon the main argument. The other point of child- that was decided, in respect of which the fine was imposed, or Ascension the conviction of Bell proceeded, certainly to my mind is a very Day-33 & 34 extraordinary one. We really have not heard any argument Vict. c. 75, from Mr. Danckwerts in favour of it. The man was a member of the Church of England. He had, previous to his marriage, attended church. He had since the year 1895 only attended twice, one occasion being his wedding day, and the other occasion a funeral, but he had been baptised and confirmed, and he still was a member of the Church of England. Upon that the justices, without any evidence before them stated in the case, said, "we were not satisfied on the evidence before us that the appellant bonâ fide belonged to or was a member of the Church of England." It really would be a dreadful thing, when a man said : "I am a member of the Church of England; I was baptised and confirmed; it is true I have been very slack in my attendance at the Church," if justices were to be allowed to find upon that that he did not belong to the community which had made certain provisions with regard to the observance of certain days. I think, therefore, for these reasons in both cases the appeal should be allowed, and the conviction imposing the penalty of a fine should be quashed. DARLING, J.-I am of the same opinion. This case is one of considerable public interest, and if it were necessary to prove that the spirit of bigotry and intolerance is not the peculiar possession of religious bodies, but may even inhabit county councils, this prosecution would serve a useful public purpose; and I think it is plain that the West Riding of Yorkshire at least cannot be said by its worst enemy to bear any resemblance to Laodicea. With regard to the arguments which have been addressed to us in this case, I do not intend myself to say very much. I take a definite view of what the history and the effect of the various statutes and canons and authorities which have been cited to us mean, and what they are, but I do not desire to say anything about them simply for this reason: that I am conscious that in addition to my Lord there is in this Court the lawyer of all the Bench most qualified to deal with this question. I could not add anything to what he will say on the matter. I am glad to know that he will deal υ. GRAHAM; v. 1907. Education Acts Attendance at Withdrawal Ascension Day-33 & 34 Vict. c. 75, ss. 7, 74.1 with the questions, and I think it important that they should be MARSHALL dealt with; but, simply because it would be of no advantage that I should deal with them myself, as my brother Phillimore is going to deal with them, I say nothing about that branch of the question. The way in which I regard the question which has GRAHAM. come before us and the solution I arrive at is this: These words "exclusively set apart for religious observance" do not mean all other things than religious practice being excluded for that day, but only such things being excluded, and for so long, as the rules of the religious body in each case in question do in terms exclude. school-Day The words "set apart" would, in my opinion, suffice, and for religious "exclusively set apart," the phrase in the Act of Parliament, is observancemerely an instance of emphasis in the not uncommon guise of of childrepetition. This naturally gets rid of Mr. Danckwerts' argument that the whole day, every moment of the twenty-four hours, must be given to the religious observance in order that any one at all should get the benefit of the exemption under this Act of Parliament. He could give only one single instance, when he was pressed, of a case in which he said this exemption would apply. That was the case of the Jewish body. But if that were so, I cannot imagine why they were not mentioned by name, and not in this obscure and roundabout manner. I have said I am not going into the reasons for this: it depends upon history and upon statutes and canons, and other authorities, but I come to the conclusion that Ascension Day is a day set apart by the religious body properly called the Church of England, and none the less so if set apart also by one of the statutes of the realm; and therefore this particular parent is entitled to the exemption which he claims. I come to that conclusion upon simply reading the statutes and the by-laws, and so on, but I should be forced to come to it if I considered the history of this one Act of Parliament. I do not mean the old Acts of Parliament, but simply the Education Acts of 1870 and since. Mr. Danckwerts, when he was asked how it came that such words as these were used, and why they were used, said it was because it was an Act of Parliament, and because Parliament was a body composed of practical men. Now, I take that from him; and, if that be so, it must not be forgotten that Parliament consists, not only of the House of Commons, but it consists also of the House of Lords, and in the House of Lords are the bishops of the Church of England. I have never seen the accusation brought against them that they are absolutely indifferent to the rights of the Church of England; I have never seen it alleged about them that they will take very good care to safeguard the members of the Roman Catholic Church or the Jewish faith, the two bodies mentioned by Mr. Danckwerts; but with regard to the liberties and rights of the Church of England they will take absolutely no care of them whatever, and yet we are asked to hold that this was done by the Parliament in which the bishops sit: That having before them the case where a father might, because he υ. GRAHAM; BELL MARSHALL belonged to a religious body, desire not to send his child to school on some day which that religious body held to be a holy day, or a sacred day, they deliberately used words which covered, says Mr. Danckwerts, certainly the Jews, probably the Roman Catholics, and their observances, perhaps some other religious bodies, but certainly did not cover the Church of England, and for the very simple reason, says Mr. Danckwerts, that the Church of England υ. GRAHAM. 1907 Acts Attendance at Withdrawal 88. 7, 74. Education is not a religious body at all. I cannot imagine for a moment such an argument as that commending itself to anybody school-Day with historical knowledge, but if the person happened to for religious be a bishop as well it is preposterous, to my mind, to suppose observance that he can ever have had such an idea in his mind when of child- he had gravely assented to this Act of Parliament. For these Ascension reasons I have arrived at the same conclusion that my Day-33 & 34 Lord has expressed with regard to the meaning of these Vict. c. 75, sections in the statutes and the by-laws. As to one other point: that in addition to this exemption given by by-law No. 4 there is by-law No. 2 made with statutory authority: "The parent of every child of not less than five, nor more than fourteen years of age, shall cause such child to attend school, unless there be a reasonable excuse for non-attendance." Now, here is a man who is summoned for not sending his child to school on Ascension Day, Ascension Day being what it is, and this man being a member of the Church of England, and, as it is found in the case, desiring that the child should go to church on that day to attend the service; and he sends the child to this church. I would ask, without fear of the answer: Let that man be what he may, Roman Catholic, Jew, Mohammedan, or any nonconformist, could anyone say, ought any magistrate to say, that when that man comes and says: "I did not send the child to school because I preferred that on that day it should attend the religious service of the body or sect to which I belong," the time of the magistrates of this country is properly spent in making orders convicting that man, and punishing him for preferring to observe the rites of the religion in which he has been brought up, and in which he is bringing up his children instead of sending the child to receive purely secular instruction. I agree with my Lord that these appeals must succeed. PHILLIMORE, J.-I am of the same opinion. With regard to the construction of the word "exclusively" I have nothing to add to what has been said by my Lord, and with regard to the meaning of the words "religious observance" I have really nothing to add to what has been said by my brother Darling. What I rather propose to devote my observations to is the argument of counsel for the respondent that the Church of England is either not a religious body, or being a religious body has not yet set apart any day for religious observance. That argument seems to me to be in part based upon a misapprehension of what the Catholic doctrine, whether Roman or Anglican, is, as to v. GRAHAM; υ. GRAHAM. 1907. Education ActsAttendance at Withdrawal of childAscension Day-33 & 34 Vict. c. 75, 88. 7, 74. religious observance. Take it in the way in which it has been MARSHALL put by my brother Darling, and the argument to that extent is answered. It is in part based upon an erroneous view of what establishment by law is. A Church which is established is not thereby made a function or department of the State. The process of establishment means that the State has accepted the Church as the religious body in its opinion truly teaching the Christian faith, and given to it a certain legal position, and to its decrees if rendered under certain legal conditions certain civil sanctions. As a branch of the contention that the Church of England either is school-Day not a religious body or has not decreed any religious observance, for religious counsel for the respondent at one time contended, or intimated observancethat the Church of England was a new creation beginning at some undefined period which he did not specify, whichin general terms is called the Reformation, and when my brother Darling addressed him upon the usual historical view of that matter, he said that that was one of the most controverted questions in the world. I do not propose to touch upon the theology or the history of the matter. We are sitting in a Court of law, and I propose to confine myself entirely to legal considerations, and I may say that the accepted legal doctrine, as to which there is no controversy, is that the Church of England is a continuous body from its earliest establishment in Saxon times. The very passages which he quoted from the judgment in Middleton v. Crofts (2 Atk. 650, at p. 653) show that the Courts accepted there the continuity of the Church, for they said that the Canons of 1603 might be enforced so far as they were declarations of the established canon law before the Act of Submission of the clergy. I remember one example, which is a striking one, because I remember the ignorant comment upon it. When the Bishop of Lincoln was tried before the Archbishop of Canterbury (see Read v. Bishop of Lincoln, 61 L. T. Rep. 403; 14 P. Div. 88), and objections taken to the archbishop's jurisdiction, the objection was met by saying that Bishop Watson had been so tried in the reign of Queen Anne, and when we come to look at the report of that trial of Bishop Watson we find that, when Bishop Watson raised the point that the archbishop could not try him, the Lord Chief Justice of England in this Court (Sir John Holt) referred to precedents in Saxon times as conclusive of the matter. There was no post-Reformation law, there was no post-Reformation practice, about the trial of a bishop by an archbishop. In order to get the fact that a bishop could be tried by an archbishop you had to go back to Saxon times and assume the continuity of the Church from that time. But I am not going to labour this matter, because those who wish to find an index to this legal doctrine will find it in a portion of Sir Robert Phillimore's judgment in Martin v. Mackonochie (18 L. T. Rep. 245; L. Rep. 2 A. & E. 116), which he devotes to the identity of the law of the Church of England before and after the Reformation, υ. BELL υ. GRAHAM. 1907. MARSHALL and long as that judgment is, and fairly long as that part of the judgment is, it is by no means exhaustive of the argument. GRAHAM; Those who wish to go further may refer to Hobart's reports, wherein a great number of ecclesiastical matters were brought up before the Court, and in which will be found constant reference to the pre-Reformation practice. That being so, and assuming the continuity of the Church and that it has a power Education of decreeing religious observances, I come to inquire whether it Attendance at has decreed anything with regard to Ascension Day, and not to chool-Day go into the matter at great length, I find the canon of the confor religious vocation of Canterbury passed under Archbishop Simon Islip in Withdrawal 1362, which codified the practice with regard to saints' days at of child that period, including all those saints' days which we find in the Ascension later statute and in our book of Common Prayer, and including Day-3334 certain others. The only addition as far as I know ever made Acts observance Vict. c. 75, ss. 7, 74. to the list was made by a canon of convocation in 1415 under Archbishop Chicheley, when the interesting fact may be noted that the day of our patron saint St. George was added to the number of days of obligation, and those who look carefully to the Act of 5 & 6 Edw. 6, c. 3, will find that, although it ceases so to be a day of general obligation, it is preserved in that Act in respect of the Knights of St. George the Garter at Windsor: (sect. 7). That being the state of the law previous to the Act of Edward VI., and the Act of Submission of Henry VIII. (25 Hen. 8, c. 19) having provided that all canons then in use which were not contrary to the prerogative royal or common law should remain in force until further order had been taken, which order never was taken, that canon of 1362 would remain as a binding canon with regard to this matter to this day. Mr. Danckwerts says, and I accept it from him, though I have not followed it, that there is a similar decree of convocation in 25 Hen. 8, reducing somewhat that number of saints' days. That is the declaration of the Church of England up to that date. Then come the various Prayer Books, the first of Edward VI., the second of Edward VI., and then come the Canons of 1603 declaring the mind of the Church with regard to the observance of those saints' days which are specified in the Prayer Book, and then comes the final Prayer Book of Charles II. Side by side with these come the specially enforcing Acts of Parliament, the Act of Henry VI. (27 Hen. 6, c. 5), which retains the licence in respect of markets and fairs following upon services upon saints' days, and probably it is perhaps a little uncertain as to the construction-providing for the observance at any rate of those specified saints' days, and of Sundays generally, and, lastly, the Act of 5 & 6 Edw. 6, c. 3, which was of course probably passed at the same time as 5 & 6 Edw. 6, c. 1, which is the second Act of Uniformity prescribing the second Prayer Book, under which Act (5 & 6 Edw. 6, c. 3) the number of saints' days is to some extent reduced, and convocation is forbidden by the strong hand of the secular power to add to |